British Airways plc v Rollett and others

Claimants without the protected characteristics of a disadvantaged group can bring claims of indirect discrimination for the “same disadvantage” - British Airways plc v Rollett and others and Minister for Women and Equalities (Intervener) [2024] EAT 131

British Airways undertook a restructuring exercise in early 2020, as result of the COVID-19 pandemic. The claimants, a group of Heathrow-based cabin crew, issued claims against the company which included allegations of indirect discrimination arising from scheduling changes brought about by the re-structuring exercise.

The claimants alleged that the scheduling changes applied by the company affected and disadvantaged:

1. Employees who lived abroad and commuted (predominantly non-British nationals) compared to those who commuted from UK; and
2.  Employees with caring responsibilities (predominantly women) compared to those who did not have caring responsibilities.

Indirect discrimination claims were also issued by those who did not have the relevant protected characteristics but experienced the ‘same disadvantage’ i.e. a British national living in France and a man with caring responsibilities. These claims were characterised as ‘associative’ indirect discrimination.

The issue was whether the Employment Tribunal (ET) had jurisdiction to interpret and extend the meaning of indirect discrimination under s19 of the Equality Act (EqA) to those without the same protected characteristics as the disadvantaged group, in accordance with EU laws and regulations.

Whilst the ET acknowledged that s19 EqA, on the face of it, did not extend that far, there was a duty to interpret s19 EqA in accordance with the principle of equal treatment in so far as was possible.

The ET therefore held that it had jurisdiction to consider the indirect discrimination claims of those affected by the respondent’s PCP, who did not have the same protected characteristic but had suffered the same disadvantage. 

The company appealed on the ground that the ET had no jurisdiction; the wording of s19 EqA is clear and unambiguous therefore it is necessary for claimants to have the same protected characteristic as the disadvantaged group.

In dismissing the appeal, the Employment Appeals Tribunal (EAT) was satisfied that there had been no error of law. The EAT considered the purpose of the EqA is to ‘harmonise discrimination law and strengthen the law to support progress on equality’. The extension of protection to those who share the same disadvantage as a result of the PCP in issue, even though they do not share the same protected characteristic, therefore falls within the jurisdiction of the ET.

Whilst the full merits of the Claimant’s case are yet to be determined, as of 1 January 2024, s19A EqA was introduced and extends protection against indirect discrimination to those who suffer “substantively the same disadvantage” without the need or reliance upon EU law.

This case serves as a reminder that employees can bring indirect discrimination claims where they suffer the same disadvantage without the requirement to have a protected characteristic themselves.